Kling v. Railway Construction Co.

7 Mo. App. 410, 1879 Mo. App. LEXIS 110

• Court: Missouri Court of Appeals
• Decided: June 17, 1879
• Status: Published

Opinion

Bakewell, J.,

delivered the opinion of the court.

This is an action by plaintiffs, as subcontractors, against the Railway Construction Company as contractors, and the Carondelet Railway Company as owners of a leasehold interest of ten years, and against Mentrup as owner of the fee. Terry, another defendant, claims an interest in the fee, and was made a co-defendant on his own motion.

The Railway Construction Company, in its answer, admits the contract, but denies the correctness of the account, and sets up violations of the contract, and delay in completing the work. The railway company files a general denial. Mentrup, the owner of the fee, makes default.

The cause was tried without a jury. The court found for appellants against the original contractor in the sum of $3,324.36. The' finding was against plaintiffs as to the claim for a lien. Judgment was entered accordingly.

Only two questions are submitted for our consideration by counsel for appellants : —

1. Was the first item in the account so stated as to warrant the giving of a lien for it ?

2. Admitting that the first item was properly excluded as not sufficiently specific to warrant a lien, should not the court have granted a lien for the remaining items of the account ?

1. The account is for 16,790.75. It purports to be a claim of F. Kling & Brother against the Railway Construction Company of Carondelet for work, labor, and materials done and furnished by F. Kling & Brother, under contract with the Railway Construction Company, upon the buildings described.

The first item is : “ To contract price, $4,996.” The remaining items are for various extras. The law requires “ a just and true account of the demand.” Wag. Stats. 909, sect. 5. It is held, generally, that where the contract for construction of the building is for a sum in gross, the items of work and materials need not be filed; but these rulings do not apply where work has been done at the instance of a contractor. Ph. on Mech. Liens, sect. 352. The reason is, that where the contract is with the owner for a round sum of money, he can need no itemized account; but where the contract of the workman, though for a round sum, is not with the owner, but with a subcontractor, the contractor cannot bind the building for more than the materials furnished on the credit of the building are fairly worth, and it is therefore important that the owner should be informed as to the particulai’S of the demand, that he may inquire as to the justice of the claim. This case seems in this respect to fall within the ruling of this court in Lowis v. Cutter, 6 Mo. App. 54. This is admitted by counsel for appellants, but he thinks Lowis v. Cutter at variance with Hilliker v. Francisco, 65 Mo. 601. In this we think he is wrong. The last-cited case merely goes to this, so far as this point is concerned: that when it appears that the owner was apprised of the terms of the contract between the principal and the subcontractor, and had agreed to the round sum of $7,000 as compensation for the work and materials mentioned in the first item, that item was sufficiently set out as “ Junction City stone furnished for First National Bank building as per contract, and labor in setting same, $7,790.”

It is presumed that the owner knows nothing of the nature and amount of the claim, the kind of work done in the building, the kind and amount of material, and the time whenthey were furnished. One who asserts a lien upon the property of another, who has not dealt with him, may justly be required to furnish every facility for investigation. When the reason ceases, the rule may .cease. But the reason of the rule seems to apply in full force to the case at bar, and Hilliker v. Francisco, the doctrine of which we admit of course, is not in point.

2. Alien greatly in excess of the amount due cannot be said to comply with the statute, which requires “ a just and true account.” The lien is an encumbrance. A contractor ought not to be allowed to recover $2,000 on a lien claim for three times the amount. It would be great injustice to permit any such lax construction of the lien law, by which owners might lose purchasers, and be deprived of the market value of their property during a long litigation as to a lien claim which turns out at last to be to a great extent unfounded. Hoffman v. Walton, 36 Mo. 613. It is surely no hardship to require of those to whom this extraordinary remedy is given that they should file, as the law requires, an account substantially correct and sufficiently definite of the claims for which they are entitled to a lien. It would be oppressive to the owners of real estate to hold that a lien may be filed for any amount, and shall be good for such items as may be established. The claim must stand or fall substantially as made. Any other construction would be against both the letter and the spirit of the law.

The judgment of the Circuit Court is affirmed.

All the judges concur.